I am loosing my home/business to a foreclosure sale. There is a final judgement of foreclosure on my property. I filed chapter 13 in hopes of getting to pay my mortgage down through a plan. Federal judge lifted the automatic stay and denied TRO to get to the trustee meeting to confirm my plan. The sale in the next 10 days and I don't know what my options are anymore. I have a bankruptcy attorney that was convinced that I would get a TRO but it failed. Federal judge states that there is a lower courts decision and he is going to go by it. Any suggestions? Thank you
Chapter 13 was your last chance. Make a deal with your mortgage company or start packing. Sometimes you need to know when to accept defeat. Hope this perspective helps.
You should file an appeal from the order lifting the stay. You only have ten days to notice the appeal and also I would request a stay of the order lifting the stay. You may have to post a bond. You have a steep hill to climb as you have to prove through affidavits in admissible form:
1. That you will suffer actual and imminent irreparable injury if the Court’s order is not stayed;
2. That the mortgage holder will not suffer substantial injury if a stay is granted;
3. That your appeal has a substantial probability of success on the merits; and
4. You must demonstrate that the public interest supports granting a stay.
So you will have to prove (1) that this is your residence and you live there; that the creditor is over-secured and will not suffer, and that you have proposed to make adequate protection payments (i.e. mortgage payments); that you will in all likelihood succeed on appeal and lastly that the public interest favors home ownership rather than homelessness.
A steep hill to climb.
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As Richard suggests, you may try to appeal; but frankly, it sounds like you lost the war. In general, the chance of an appeal court overturning a lower court decision is less tha 5%. Your resources are better spent moving than continuing to fight a war you seem to have lost.
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